We should always be looking to see where we are, how we got there, and where we appear to be going. My purpose in this article has been to ask those questions in the context of rape law. In evaluating rape reform, I have tried to be fair-minded and balanced in my observations. I have suggested areas in which the law should go further to protect against sexual misconduct, but I have also expressed my belief that rape law reform threatens to move in undesirable directions. In particular, I have argued that there is a risk that courts will follow the lead of a few jurisdictions and unrealistically expand the concept of "force" in rape cases, that we should not take the "absence-of-yes-means-no" path in criminal law enforcement, and that we should be careful not to eviscerate the mens rea requirement in rape prosecutions. I urge a thoughtful and reasoned look at where we have been in rape law and where we may be going. The goal should ultimately be to strike a sensible balance. We should not give up the gains in rape reform and, indeed, should go further in some regards, but we should move with considerable caution.
Where We Have Been, and Where We Might Be Going: Some Cautionary Reflections on Rape Law Reform, The Sixty-Eighth Cleveland-Marshall Fund Lecture ,
46 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol46/iss3/3